Van Ness v. State, Department of Education.Â

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Electronically Filed
Supreme Court
SCWC-11-0000775
23-JAN-2014
08:07 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---

LYNEDON A. VAN NESS,
Petitioner/Claimant-Appellant

vs.

STATE OF HAWAI#I, DEPARTMENT OF EDUCATION
Respondent/Employer-Appellee, Self-Insured.

SCWC-11-0000775

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000775; CASE NO. AB 2009-158 (M) (7-07-10239)

January 23, 2014

RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.

OPINION OF THE COURT BY POLLACK, J.

This appeal arises out of a workers’ compensation claim

filed by Petitioner/Claimant-Appellant Lynedon Van Ness (Van

Ness) with the Director of Labor and Industrial Relations

(Director), in which Van Ness sought compensation for the

aggravation of his asthma resulting from his exposure to vog at
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work.1

The Director denied his claim, and the Labor and

Industrial Relations Appeals Board (LIRAB) affirmed the decision.

Van Ness now seeks review of the January 31, 2013 Judgment of the

Intermediate Court of Appeals (ICA), affirming the LIRAB’s

decision. For the reasons set forth herein, we hold that Van

Ness is entitled to compensation pursuant to Hawai#i Revised

Statutes (HRS) § 386-3(a), governing an injury by disease that is

proximately caused by employment. Accordingly, we vacate the

ICA’s judgment and the LIRAB’s decision and remand to the

Director for a determination of the amount of compensation to be

awarded.

I. BACKGROUND

The following facts are taken from the record and from

Van Ness’s testimony at the LIRAB hearing.

A.

Van Ness was employed by the State of Hawai#i,

Department of Education (DOE), as a technology coordinator at

Lahainaluna High School (Lahainaluna), on the island of Maui,

from July 2005 to November 2006. He had a history of “mild

1
“Vog is a term that refers to volcanic smog. It is . . . caused
by a combination of weather, wind conditions and volcanic activity. Vog
becomes thicker or lighter depending upon the amount of emissions from Kilauea
volcano [on the island of Hawai#i], the direction and amount of wind, and
other weather conditions.” Important Information About Vog, Governor of the
State of Hawai#i, http://governor.hawaii.gov/emergency-information/important-
information-about-vog/ (last visited Dec. 11, 2013). See Merriam-Webster,
http://www.merriam-webster.com/dictionary/vog (last visited Dec. 12, 2013)
(defining “vog” as “air pollution caused by volcanic emissions”).

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persistent asthma” that he had largely controlled through

avoidances and prescribed medications.

In 1989, Van Ness was employed by the DOE as a school

teacher on the island of Hawai#i. While teaching in Kona, Van

Ness was exposed to vog and “had difficulty breathing and

required courses of systemic corticosteroid for rescue along with

regular controller medication.”

In 1991, Van Ness was transferred to a school on the

island of O#ahu and began receiving respiratory treatment from

James M. Sweet, M.D. (Dr. Sweet) and Russell M. Tom, M.D. (Dr.

Tom). “He was tested and confirmed to have allergic potentials

to multiple inhalant allergens including dust mite and mold

spores.” He was placed on “a several-year course of

desensitizing immunotherapy and had [a] favorable outcome.”

From 1995 to 2001, Van Ness lived in Idaho, during

which he “had few symptoms of allergic-respiratory disease.”

Van Ness returned to O#ahu in 2001 and was employed by

the DOE as one of two technology coordinators at Leilehua High

School. In October 2004, during a trip to California, Van Ness

was hospitalized for a diaphragmatic hernia. He also contracted

pneumonia during his treatment.

In July 2005, Van Ness was transferred to Lahainaluna

to work as the technology coordinator. Lahainaluna had

approximately one thousand students and one hundred and fifty

staff members. Van Ness was the only technology coordinator at

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the school and was responsible for maintaining and repairing the

technical equipment for the entire school.

Van Ness testified that Lahainaluna is located on the

side of a mountain, at the end of Lahainaluna Road. Lahainaluna

Road “starts right at the ocean, goes a couple blocks, and then

goes up the hill past the intermediate and elementary school to

the high school.” Lahainaluna’s campus was situated at the

highest point that Lahainaluna Road reached on the mountain.

Van Ness testified that due to the school’s location,

the school buildings and classrooms are “kind of spread out and

put up against the sides of the mountain in various locations,”

and there are “stairs that go up the side of the hill.” Van Ness

estimated that between campus buildings on the lowest and highest

point of the mountain, there was an elevation difference of a

“couple hundred feet.”

Van Ness testified that the staff was not provided with

golf carts for transportation, and due to the steepness of the

campus terrain and the lack of paved roads, it would have been

impractical to attempt to use golf carts for transportation

around the school.

Van Ness’s office was located in the school library,

which was situated at the highest point of the campus. Van Ness

was required to repeatedly climb up and down the school stairs

daily in order to service the classroom computers at the lower

parts of campus. He explained that there were fifty to sixty

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stairs at the base of the library, another eighty stairs to reach

the next level of buildings, about “three or four floors” down to

the parking lot, and then another “hike down” to the final

section of buildings. The stairs “wrap[ped] around trees” and

went “up the side of the hill.” There were also “switchbacks,

where you go up one way and go the other direction.”

Van Ness testified that he was forced to stop to catch

his breath as he traveled uphill to his office from the lower

campus. It took “about five minutes to go down to [the]

admin[istration] [building], [but] like 20 minutes to come back.

It’s the elevation change in the stairs. It takes quite a bit of

effort.”

Van Ness was generally present on campus for seven to

eight hours a day. Although his office was air conditioned, Van

Ness estimated that he spent less than five percent of his time

at work in his office. When he was not in his office, Van Ness

worked in non-air conditioned environments “all over campus,” in

buildings with “louvered windows” and “fans . . . inside to keep

the air circulating.” Although many of the classrooms and

offices were equipped with air conditioners, most of the units

were turned off and the louver windows were left open.

Van Ness explained that his experience working as a

technology coordinator at Lahainaluna was different from his

experience working in the same position at other schools because

he was required to engage in a significant amount of physical

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activity outside. Additionally, Van Ness testified that the

computers at Lahainaluna required more maintenance than computers

at other schools because they were exposed to more dust and dirt

as a result of the buildings being non-air conditioned and the

windows being left open. Van Ness frequently cleaned and

replaced the computer filters, which were clogged with dust.

Many computers “overheated” because of the lack of circulation

and the accumulation of dust. At schools on O#ahu, he focused on

upgrading the computers to “run faster and more efficiently,”

whereas at Lahainaluna, “it was more an issue of keeping them

running.”

While Van Ness worked at Lahainaluna, he lived in an

air conditioned home in Kihei. The air conditioner had a built-

in filter. In addition, Van Ness had several “Bionic Breeze”

filter units placed around his home. The units were high-

efficiency particulate air (HEPA) filters, and had been

recommended by his doctor. Van Ness also had a HEPA filter in

his car.

Van Ness testified that there was a significant amount

of vog on Maui from late October 2005 through April 2006. On

days when the vog was severe, he was unable to see the

administrative building “halfway down the campus” from the

library. Van Ness also stated that a film of volcanic ash would

accumulate on his car and windshield, requiring him to use the

windshield wipers to keep the windshield clear while driving.

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Van Ness did not have any problems with volcanic ash

inside his car or his home. He testified that while living on

Maui he spent little time outside, other than when he was at

work, as he was “not much of an outdoors person” and “there

really wasn’t much to do there.”

Van Ness testified that in late 2005, his exposure to

vog at work affected his respiratory condition by reducing the

amount of air he was able to breathe. When the vog was severe,

he experienced “a lot of coughing, wheezing.” He also caught a

cold and contracted bronchitis. Van Ness’s shortness of breath

worsened when he walked uphill to his office from servicing the

computers in the lower campus classrooms. Van Ness described the

pain from coughing as “incredibly sharp,” “like a stabbing pain.”

Additionally, Van Ness explained that when he tried to

move around, he would start sweating, his heart began “pounding a

lot,” and his face “[got] all red.” Because Van Ness had to walk

to his office and assigned parking spot located at the top of

Lahainaluna’s campus, “it caused a lot of . . . issues with

strength, a lot of issues with just being able to breathe.” He

explained:

[The vog] basically reduced the amount of air I was able to
breathe. And started wheezing and coughing. Real shortness
of breath. And obviously the more that happened, the worse
it got, to where I basically went level to level and took
breaks before I’d continue all the way up. It’s steep.
There were times when I would drive. It was easier to drive
from the library down, around the campus, up to admin, than
to actually walk down there.

Prior to the period of severe vog, Van Ness was able to

control his asthma condition with a regular inhaler, which he

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usually did not need to use. Van Ness was prescribed enough

medication to last thirteen months. While living on O#ahu, Van

Ness never exhausted the entire thirteen-month supply and only

refilled his prescription when the inhalers expired.

While working at Lahainaluna in late 2005, however, Van

Ness exhausted his supply of inhalers before his prescription

expired, and he was frequently required to refill his inhalers at

the pharmacy. However, his inhalers and other medication were

not helping with his breathing.

On December 23, 2005, which was a work holiday during

Lahainaluna’s winter break, Van Ness traveled to O#ahu to see Dr.

Tom, his primary care physician, about his condition. Dr. Tom’s

clinical notes include a reference to “vog,” although some of the

handwriting is illegible. Dr. Tom wrote that Van Ness was

experiencing difficulty breathing and coughing. Van Ness

testified that after performing x-rays and tests, Dr. Tom

diagnosed him with chronic bronchitis.

Van Ness testified that following his visit with Dr.

Tom, he was placed on “light duty” at work, which required that

he “stay out of the vog whenever [he] could” but did not limit

his physical activity.

Van Ness had a follow-up visit with Dr. Tom on January

28, 2006. Dr. Tom’s clinical notes indicated that Van Ness’s

symptoms of coughing, chest congestion, shortness of breath, and

wheezing, had “never completely gone away from [the] 12/23/05

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visit.” Dr. Tom also made note of the possibility of “vog

contributing” and “vog on Maui.”

On March 4, 2006, Van Ness saw Dr. Sweet, his treating

physician for his respiratory condition. Van Ness was still

experiencing shortness of breath and wheezing. Dr. Sweet also

noted that Van Ness had taken a trip to Pennsylvania and “[w]hile

in Philadelphia he was on prednisone. His wheezing and

[shortness of breath] essentially resolved. [Van Ness] states as

soon as he returned to Maui he started to have wheezing and

[shortness of breath].”

On March 10, and 23, 2006, Dr. Tom wrote two notes,

addressed “To Whom It May Concern,” stating that Van Ness had an

asthma condition which was exacerbated by vog. Dr. Tom wrote

that Van Ness’s symptoms had worsened since moving to Maui due to

the higher vog exposure there. Dr. Tom recommended that Van Ness

be transferred to O#ahu due to his condition.

On March 23, 2006, the DOE approved Van Ness’s request

for a “hardship transfer from Maui District to Oahu District due

to medical reasons.” However, Van Ness was not immediately

transferred.

On May 2, 2006, Van Ness was hospitalized at Queen’s

Medical Center (QMC) on O#ahu for surgery on a hernia in his

diaphragm. Van Ness testified that the x-ray that Dr. Tom

performed of Van Ness’s diaphragm in December 2005 had identified

a “hole in the diaphragm . . . separating the abdomen from the

lungs.” He testified that “later it was found that because of

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all the coughing and wheezing, . . . the tear had gotten a lot

larger[.]”

After surgery, Van Ness testified that he experienced

various complications, including “post-operative pneumonia, post-

operative multi-system organ failure, life threatening pneumonia,

advanced respiratory distress syndrome, renal failure,

gastrointestinal bleeding, tracheostomy and gangrene.” The

gangrene “led to amputation of the terminal digits of his first

and fifth fingers on the right.” Van Ness testified that Paul

Morris, M.D. (Dr. Morris), Van Ness’s treating physician at QMC,

told him that his body would not have been as physically weak

post-operation if the DOE had transferred him to O#ahu in March

2006 when his hardship transfer was approved by the DOE.

Van Ness was discharged from QMC on June 9, 2006. On

July 25, 2006, Van Ness returned to work at Lahainaluna.

Van Ness was transferred to O#ahu in November 2006.

Following the transfer, he continued to have respiratory

difficulties as his body recuperated from surgery. On June 16,

2007, Dr. Tom restricted Van Ness from “walking too far because

that just kept [Van Ness] in a situation of overworking [his]

lungs in the recovery period.”

B.

On September 20, 2007, Van Ness filed a workers’

compensation claim with the Director, stating that “on or about”

December 23, 2005, he was exposed to vog during the course of his

employment at Lahainaluna, resulting in the “exacerbation of

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[his] asthma, bronchitis, [and] difficulty breathing.” He stated

that he had given his employer notice of injury through Joanne

Dennis, Lahainaluna’s Vice Principal.

On October 12, 2007, the DOE filed a report denying

liability for Van Ness’s claimed injury “pending further

evaluation.”

On October 19, 2007, Vice Principal Dennis wrote a

letter confirming that prior to December 23, 2005, she had, on

several occasions, discussed with Van Ness his difficulties with

breathing and asthma that he experienced while working at

Lahainaluna. She also verified that “[w]e experienced some

unusually severe vog-polluted days during the weeks preceding

that winter break.” “On some days the atmosphere was so heavy

with vog that we could barely see Lahaina town from Lahainaluna

High School.” She noted that “the vog was even worse” in Kihei,

where Van Ness lived. Vice Principal Dennis also “experienced

intense headaches during those ‘voggy’ days,” even though she did

not have asthma.

Van Ness also testified that he had discussed his

medical condition with Vice Principal Lynn Kaholohala prior to

December 23, 2005.

C.

Upon the DOE’s request, the Director issued an order on

January 11, 2008, requiring Van Ness to submit to an Independent

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Medical Examination (IME) by Ajit S. Arora, M.D. (Dr. Arora).2

The IME was conducted on January 25, 2008, and consisted of an

“extended interview and examination.”3 No medical records were

available for Dr. Arora’s review at the time. Dr. Arora

submitted his report on February 5, 2008.

As an initial matter, Dr. Arora noted that “[t]he claim

apparently is based on the assumption that since exposure to vog

occurred also at the school, it is a work related exacerbation of

asthma. The legal implications of this are not clear to me

because vog is not a factor that is associated with school

2
The DOE asked Dr. Arora to review Van Ness’s medical records and
to conduct a physical examination in order to address: (1) Van Ness’s relevant
medical history; (2) whether Van Ness suffered “an industrial injury” as a
result of exposure to vog on December 23, 2005; (3) whether the “alleged
condition was due in whole or in part to the nature of [Van Ness’s] employment
with the DOE,” or some other pre-existing cause; (4) whether the alleged
condition or injury was “temporary in nature”; (5) if the injury is not
temporary in nature, whether Van Ness is “expected to have permanent
impairment resulting solely from an alleged industrial injury of 12/23/05”;
and 5) whether there are any further issues or considerations regarding the
alleged injury.

3
Dr. Arora noted that Van Ness, upon advice of counsel, refused to
submit to blood work or to testing with an electrocardiogram to assess organ
function.
On March 31, 2010, the DOE filed a motion for an order suspending
Van Ness’s right to claim compensation for failure to comply with HRS § 386-
79, based on Van Ness’s refusal to have tests done during the IME.
Furthermore, the DOE alleged that Van Ness’s counsel “revoked medical
authorizations” and withheld certain medical records.
On June 23, 2010, the LIRAB denied the DOE’s requested order. In
the DOE’s June 3, 2010 post-hearing trial memorandum filed with the LIRAB, the
DOE continued to argue that Van Ness’s right to seek compensation should be
suspended because of his failure to participate in tests during the IME and
his continued withholding of medical records. The LIRAB concluded that it did
not need to reach the DOE’s argument regarding the suspension of Van Ness’s
rights to claim workers’ compensation benefits.
HRS § 386-79 (1993) provides that “[a]fter an injury and during
the period of disability, the employee, whenever ordered by the [Director],
shall submit oneself to examination . . . by a duly qualified physician or
surgeon designated and paid by the employer.” The statute further states that
“[i]f an employee refuses to submit oneself to, or in any way obstructs, such
examination the employee’s right to claim compensation for the work injury
shall be suspended until the refusal or obstruction ceases and no compensation
shall be payable for the period during which the refusal or obstruction
continues.” Id.

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uniquely.”

The majority of Dr. Arora’s report reiterated Van

Ness’s medical history and exposure to vog at Lahainaluna,

consistent with Van Ness’s testimony at the LIRAB hearing. Dr.

Arora stated that “the issues are quite complex.” Because Dr.

Arora did not have access to Van Ness’s medical records, he

concluded that “it [would] be unwise to address the [DOE’s]

referral questions” until he had access to the relevant records.

On February 14, 2008, Van Ness was seen by David A. Mathison,

M.D. (Dr. Mathison), for a consultation regarding “asthma,

allergies, [and] vog effect on lungs.” Dr. Mathison prepared a

consultation report based on his interview with Van Ness and his

wife, a physical examination of Van Ness, and Van Ness’s medical

records provided by Dr. Sweet dating back to 1991, which included

a summary of Van Ness’s hospitalization at QMC in May 2006.

Dr. Mathison first discussed Van Ness’s aggravated

asthma and noted that after several months on Maui “during a 40-

day spell of rainy weather with vog (moisture, pollutants

including volcanic smoke/ash) exposure from about November 2005

and continuing into the spring of 2006, [Van Ness] had serious

flare of asthmatic symptoms with harsh paroxysms of cough, chest

tightness, shortness of breath, and wheeziness[.]” At that time

Van Ness’s symptoms were “only partially controlled with

medications for asthma/bronchitis including Advair, Singulair,

and albuterol.”

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Dr. Mathison wrote that Van Ness’s symptoms were

complicated by “hernia of the right diaphragm, and urgent surgery

was performed at the Queens Medical Center on May 2, 2006.” Dr.

Mathison also noted the various post-surgery complications Van

Ness experienced. He wrote that after being discharged from the

hospital, Van Ness had “improved respiratory symptoms, he was

able to return to Maui and work there through the remainder of

2006.”

Dr. Mathison noted that since moving back to O#ahu, Van

Ness “has been relatively free of respiratory symptoms. He . . .

rarely has had need for albuterol and has not regularly taken the

Advair.”

Dr. Mathison noted that throughout the years, Van

Ness’s “allergic diathesis has largely been controlled with

avoidances and the several-year course of immunotherapy during

the early 90s. However, he has had significant asthma

exacerbations with exposures to volcanic smoke (high in sulfur

dioxide) and ash including that carried by meteorologic[al]

conditions holding the pollutant[] in moist air over Maui.” Dr.

Mathison also found that at the time of the consultation, Van

Ness’s condition had “improved coincident to his residence in

Oahu, though he continues to . . . recover[] from complications

of respiratory disease-surgery from near 2 years ago.”

In conclusion, Dr. Mathison diagnosed Van Ness with

“[m]ild persistent asthma with history of exacerbations with

exposures to volcanic smoke-ash-pollution.”

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Dr. Mathison recommended that Van Ness “continue the

regimen of avoidances and medications as prescribed by Dr. Sweet

in an attempt to optimally control the allergic-asthmatic

disorders.” Dr. Mathison wrote, “Of particular concern is the

risk for serious and potentially fatal asthma exacerbation with

exposure to volcanic products, a well-recognized risk factor for

asthmatic patients.” (Emphasis added). He concluded that Van

Ness “can be considered to be disabled by virtue of his asthmatic

tendency and susceptibility to the volcanic pollutant effects

and, in accordance with the American Disabilities Act, it

behooves his employer not to place him at risk of asthmatic

exacerbations by assignments to areas likely to have volcanic

exposure-pollution.” (Emphasis added).

D.

The Director’s hearing on Van Ness’s claim was held on

March 13, 2008.4 On April 21, 2008, the Director issued a

decision denying Van Ness’s workers’ compensation claim. The

Director stated that “[a]fter a review of the evidence presented

at the hearing, the Director is not convinced that claimant’s

injury arose out of and in the course of employment.” The

Director found that “[Van Ness’s] exposure to vog aggravated his

long standing asthma condition.” However, “[t]he vog was present

on the entire island of Maui and not only at claimant’s place of

employment.” The Director found that “it was claimant’s exposure

4
The transcript for the March 13, 2008 hearing was not made part of
the record on appeal.

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to vog on the island of Maui that aggravated his asthma

condition,” and there was “insufficient evidence” to support Van

Ness’s “claim that his exposure to vog at only Lahainaluna School

was so overwhelming that [Van Ness’s] exposure to vog occurred at

this place of employment only[.]” The Director therefore did not

“find a nexus between the claimant’s employment and his injury of

12/23/2005.”

The Director concluded: “[T]he claimant’s respiratory

problem and aggravation of his asthma condition was not work

related. The Director credits the report of Dr. Arora and the

employer’s position.”

II. APPEAL TO LIRAB

On May 2, 2008, Van Ness timely filed an appeal from

the Director’s Decision with LIRAB, pursuant to HRS § 386-87.5

A.

On April 10, 2009, Dr. Arora issued a supplemental

report as a follow-up to his initial evaluation of February 5,

2008. The report reviewed records from Dr. Tom from 1994 through

2007, diagnostic reports from the same time period, records from

the California hospital where Van Ness was admitted in 2004, and

hospital records from January 2005 through October 2006.

Dr. Arora wrote that Dr. Tom’s records from Van Ness’s December

23, 2005 visit noted that Van Ness had experienced a cough for

5
HRS § 386-87(a) (1993) provides in relevant part: “A decision of
the director shall be final and conclusive between the parties, . . . unless
within twenty days after a copy has been sent to each party, either party
appeals therefrom to the appellate board by filing a written notice of appeal
with the appellate board or the department.”

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only five days, had difficulty breathing, and requested a refill

of his albuterol inhaler. According to Dr. Arora, Dr. Tom did

not make any note of the vog as a contributory factor.

Additionally, Dr. Arora found that Van Ness had seen

Dr. Tom on December 2, 2005 for a regular checkup and laboratory

work-up, and did not report any problem with breathing at that

time.

In Dr. Arora’s opinion, it was “impossible to

determine” if the reported worsening of Van Ness’s asthma

symptoms in March 2006 was caused by the vog or by the

diaphragmatic hernia that worsened around the same time.

Dr. Arora stated that he had “not had the opportunity to review

the records from Dr. Sweet to determine if objectively there was

any change in [Van Ness’s] pulmonary status between December 2005

and March 2006 compared to his previous baseline.” Nevertheless,

Dr. Arora indicated, “I doubt that to be the case.” He

explained, “Asthma exacerbation can occur in association with

irritant exposure. However, it is a temporary worsening of the

symptoms with recovery to baseline. It does not constitute

aggravation of the condition.”

Dr. Arora concluded that Van Ness’s “history is

compatible with mild exacerbation of his asthma while in Maui

because of vog conditions.” Dr. Arora also concluded that the

exacerbation of asthma “has no relationship to his employment

with the department of education,” and “[s]uch exacerbation was

temporary and reversible and did not cause any permanent

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aggravation of his condition.” Dr. Arora’s opinion was that

“there was no occupational injury that occurred in [Van Ness] as

a result of employment with [the DOE].”

B.

On July 1, 2009, the LIRAB issued a Pretrial Order,

providing that “[t]he sole issue to be determined is whether

Claimant sustained a personal injury to his respiratory system,

on December 23, 2005, arising out of and in the course of

employment.”6

The LIRAB hearing on the case was held on April 6,

2010. Van Ness was the only testifying witness at the hearing,

and testified as to his asthmatic condition and his experience

working at Lahainaluna, as summarized above.

An air quality advisory that was posted on the State of

Hawai#i government’s website on July 29, 2008 was stipulated into

evidence. The advisory stated that the State Department of

Health and Hawai#i County Civil Defense had reported “that recent

activity at the Kilauea volcano has resulted in some temporary

increased levels” of sulfur dioxide and particulates. The

advisory provided that the Department of Health “advises that

exposure to such elevated levels of sulfur dioxide can pose an

immediate health threat to people who have asthma and other

respiratory conditions.” (Emphasis added). The advisory further

stated that people in “sensitive groups such as those with asthma

. . . can be particularly vulnerable” and that “people reacting

6
The Director’s case file was made a part of the LIRAB’s record.

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to volcanic emissions” should “take protective measures such as

staying indoors with the windows closed or relocating to a safe

area.” The advisory cautioned that people should “avoid physical

activity (especially outdoors) such as brisk walking or

exercise.”

In addition, an undated document entitled “Health

Effects,” prepared by the Office of the Governor, was also

entered into evidence. The document explained that sulfur

dioxide is an “irritant gas” that is “a major component of vog.”

Sulfur dioxide “is usually removed by the nasal passages,” and

“[m]oderate activity levels that trigger mouth breathing (such as

a brisk walk) are needed for [sulfur dioxide] to cause health

problems.”

The document further stated that “[p]eople with pre-

existing respiratory conditions are more prone to adverse effects

of vog which may include: headaches, breathing difficulties,

increased susceptibility to respiratory ailments, watery eyes,

and sore throat.” Additionally, “[p]eople with asthma who are

physically active outdoors are most likely to experience the

health effects of [sulfur dioxide]. The main effect, even with a

short exposure, is a narrowing of the airways (called

bronchoconstriction). This may cause wheezing, chest tightness,

and shortness of breath.” (Emphasis added).

Both the air quality advisory and the “Health Effects”

notice provided that “[t]he long-term health effects of vog are

unknown.”

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C.

The LIRAB ordered that the parties submit post-trial

memoranda in lieu of closing arguments.

1.

In his Post Hearing Memorandum, Van Ness argued that he

“suffered an aggravation of his asthmatic condition due to having

to do strenuous work and breathe outdoor air during a period of

high vog concentrations.” He contended that the DOE failed to

provide substantial evidence to overcome the presumption of

compensability for his workers’ compensation claim. Van Ness

argued that the aggravation of his asthma met the test for

compensability under Flor v. Holguin, 94 Hawai#i 70, 81, 9 P.3d

382, 393 (2000), which held that an injury by disease is

compensable if the disease (1) is caused by conditions that are

characteristic of or peculiar to the particular trade,

occupation, or employment, (2) results from the employee’s actual

exposure to such working conditions, and (3) is due to causes in

excess of the ordinary hazards of employment in general.

The DOE countered that Van Ness failed to establish a

nexus between his employment and the alleged injury of vog-

related asthma. The DOE argued that there was no causal

connection between Van Ness’s employment and his injury because

Van Ness was not required to be at work on the alleged date of

injury and his medical records indicated that his respiratory

problems were related to his preexisting health condition.

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Additionally, the DOE argued that there was no evidence

that the vog conditions experienced by Van Ness at work were

greater than that experienced by the general population. The DOE

also contended that any aggravation of Van Ness’s asthmatic

condition was temporary in nature as demonstrated by his improved

health when he was transferred to O#ahu.

2.

On September 20, 2011, the LIRAB issued its Decision

and Order, which included its Findings of Fact (FOF) and

Conclusions of Law (COL).

With respect to Van Ness’s medical records, the LIRAB

found that: 1) on March 23, 2007, Dr. Tom “concluded that [Van

Ness] suffered from asthma exacerbated by vog while he was on

Maui” and recommended that Van Ness move to O#ahu; 2) on February

14, 2008, Dr. Mathison diagnosed Van Ness with “mild persistent

asthma with history of exacerbations with exposures to volcanic

smoke-ash-pollution”; and 3) Dr. Arora’s opinion in his

supplemental report was that “Claimant’s history was compatible

with mild exacerbation of his asthma because of vog conditions.”

The LIRAB entered findings reiterating Van Ness’s

testimony about Lahainaluna’s campus, the vog at work, and his

pre-existing asthma condition. However, the LIRAB found that Van

Ness faced the same “hazard from vog exposure” at work as the

general public, and the DOE had presented substantial evidence to

overcome the presumption of compensability:

9. The Board finds that Claimant’s work or work environment
posed no greater vog exposure than that posed to the general

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public. The hazard from vog exposure Claimant faced while
on the campus of Lahainaluna School was no greater hazard or
risk than that faced by others off of the campus of
Lahainaluna School.

10. The Board has applied the presumption of compensability
and finds that Employer has presented substantial evidence
to overcome said presumption.

(Emphases added).

The LIRAB thus concluded that Van Ness “did not sustain

a personal injury to his respiratory system, on December 23,

2005, arising out of and in the course of employment.” The LIRAB

explained that Van Ness “was not at work or even on Maui on

December 23, 2005.”

“However, inasmuch as Claimant identified his date of

injury as ‘on or about’ December 23, 2005,” the LIRAB also

concluded that it was “not persuaded by” Van Ness’s argument that

“his asthma was a compensable disease caused by conditions

peculiar to his particular employment.” In this regard, the

LIRAB concluded that “exposure to vog was not accentuated or made

worse by the nature and conditions of Claimant’s employment,”

based on the following reasoning:

Claimant was a technology coordinator. His risk of exposure
to vog was walking outdoors and being in some buildings that
were not air-conditioned. These exposures are no greater
than that of the general public. The nature and conditions
of his employment did not accentuate the exposure. Rather,
the vog was in the air, and the general public breathed the
same air.

(Emphasis added).

The LIRAB also rejected Van Ness’s claim that, “but for

work, he would otherwise have been in a filtered environment at

his home.” The LIRAB reasoned that “the relevant comparison is

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made to the general public’s exposure, not Claimant’s alleged

comparatively hermetic and sterile home environment.”

Based on the foregoing, the LIRAB concluded that it was

unnecessary to address the DOE’s argument that Van Ness’s “right

to claim workers’ compensation benefits be suspended because of

his refusal to cooperate by undergoing the tests requested by Dr.

Arora.”7

Therefore, the LIRAB affirmed the Director’s decision

to deny compensation.

III. APPEAL TO ICA

On October 20, 2011, Van Ness timely filed a Notice of

Appeal to the ICA.8

A.

Van Ness raised three points of error on appeal to the

ICA, alleging that the LIRAB erred 1) in entering FOF 9 that his

vog exposure at work posed no greater vog exposure or greater

hazard or risk than that faced by the general public; 2) by

concluding that he did not sustain a personal injury to his

respiratory system on December 23, 2005, arising out of and in

the course of employment; and 3) by concluding that his exposure

to vog was not made worse by the nature and conditions of his

employment because the general public breathed the same air.

7
See supra note 3.

8
HRS § 386-88 (Supp. 2011) provides in relevant part: “The decision
or order of the appellate board shall be final and conclusive, . . . unless
within thirty days after mailing of a certified copy of the decision or order,
the director or any other party appeals to the intermediate appellate court, .
. . by filing a written notice of appeal with the appellate board.”

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Van Ness reiterated that the aggravation of his asthma

condition was compensable as an injury by disease under the Flor

test. With respect to the first Flor factor, he argued that his

preexisting asthma condition should be considered along with the

unique nature of his work at Lahainaluna, as compared with the

same position at other schools. Second, Van Ness argued that his

work required actual exposure to vog, as was found by the LIRAB

in FOF 9, and the evidence demonstrated that exposure to vog

adversely affected him and exacerbated his asthma. Third, Van

Ness contended that the LIRAB erred in comparing his vog exposure

to that of the general public, as the general public was not

exposed to the vog conditions while being “required to do

strenuous work outdoors.” The real issue was that “Claimant’s

job conditions exposed him to a positional or actual risk which

resulted in his injury.” In this case, the LIRAB’s own findings

demonstrated that his asthma was exacerbated by vog.

In response, the DOE maintained that Van Ness’s claim

was non-compensable based on the evidence that Van Ness was

exposed to the same air and vog at work as all other persons on

Maui. Additionally, the DOE argued that “[a]lthough the medical

experts opined that vog exacerbated Claimant’s asthma, none of

them opined that Claimant’s asthma was exacerbated by his

employment.”

The DOE further contended that while it was unclear

whether Van Ness was pursuing his claim as an injury by accident

or injury by disease, the LIRAB accurately concluded that Van

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Ness’s injury was not compensable under either alternative. With

respect to an injury by accident, the DOE argued that the LIRAB

correctly found that there was no nexus between the alleged

injury and Van Ness’s employment, as Van Ness was not physically

present at work or on Maui on the alleged date of injury. In

regard to an injury by disease claim under Flor, the DOE

maintained that there was “no evidence that [Van Ness’s] asthma

is characteristic of his occupation as a technology coordinator.”

The DOE acknowledged that Van Ness “may meet” the second Flor

requirement, as there was evidence that “Claimant’s presence at

Lahainaluna School, just as his presence anywhere on the island

of Maui, exacerbated his asthma due to the presence of vog.” As

to the third Flor condition, the DOE maintained that there was

“no evidence that the aggravation of Claimant’s asthma is due to

causes in excess of the ordinary hazards or employment in

general,” as the vog affected the entire island. Therefore, the

LIRAB’s FOF 9 and FOF 10 were correct.9

Van Ness responded that his claim was based on an

injury by disease under the Flor test. He also argued that the

DOE misconstrued Flor as requiring “all technology coordinators .

9
Relatedly, the DOE argued that Van Ness failed to challenge FOF 10
as a point of error and that any arguments regarding FOF 10 should therefore
be disregarded.
Van Ness responded that his argument should not be disregarded, as
FOF 10 was thoroughly discussed as a point of error in the body of his Opening
Brief. [RB at 8] Van Ness argued that FOF 10 was clearly erroneous because
the DOE did not adduce substantial evidence to overcome the presumption of
compensability.
The ICA found that although Van Ness had not raised FOF 10 as a
point of error, he had challenged FOF 10 in the argument section of his
Opening Brief and provided the necessary information to assist the ICA in
identifying his argument. Van Ness v. State, No. CAAP-11-0000775, 2012 WL
6115601, at *2 (Haw. App. Dec. 10, 2012) (mem.).

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. . to have something in their work that causes asthma.” Rather,

the correct analysis was to determine whether a condition,

characteristic to Van Ness’s particular job as a technology

coordinator at Lahainaluna, caused the exacerbation of his

asthma.

B.

The ICA applied the Flor test for providing coverage

for injuries caused by an “occupational disease.” Van Ness v.

State, No. CAAP-11-0000775, 2012 WL 6115601, at *4 (Haw. App.

Dec. 10, 2012) (mem.). Characterizing Van Ness’s claim as a

claim that the exacerbation of his asthma resulted from work-

related vog exposure, the ICA found that the second condition of

the Flor test was met because it was “undisputed that Van Ness

faced actual exposure to vog in his employment[.]” Id. However,

the ICA concluded that Van Ness’s claim did not constitute a

“compensable occupational disease because the DOE produced

substantial evidence” that the first (disease caused by

conditions characteristic of employment) and third (disease due

to causes in excess of ordinary hazards of employment) conditions

of Flor were not met. Id.

Citing Flor, the ICA applied the following standard for

compensable occupational diseases:

[A]n occupational disease requires “a recognizable link
between the disease and some distinctive feature of the
claimant’s job, common to all jobs of that sort.” An
occupational disease cannot be “an ordinary disease of life
to which general public was equally exposed outside of that
employment,” and the disease must “have incidence
substantially higher in that occupation than in usual
occupations or, in case of ordinary disease of life, in
general population.” In other words, the Flor test requires

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that “the employer’s working conditions produced the ailment
as a natural incident of the employee’s occupation in such a
manner as to attach a hazard distinct from and greater than
the hazard attending employment in general.”

Id. (citations omitted) (emphasis added).

The ICA found that Van Ness did not meet this test,

emphasizing the requirement that the feature causing the disease

be “common to all jobs of that sort.” Id. The ICA reasoned that

“Van Ness’s occupation was as a technology coordinator, and his

primary duties were maintaining and repairing technology

equipment.” Id. at *5. “This work, in and of itself, could not

have exacerbated his asthma and Van Ness does not contend that it

does.” Id. Thus, the ICA concluded, “his disease was produced

not by ‘natural incident’ or ‘distinctive feature of the

claimant’s job, common to all jobs of that sort,’ but rather by

his exposure to vog.” Id. (citation omitted) (emphasis added).

The ICA continued, “Vog exposure itself cannot be considered a

condition characteristic of or peculiar to Van Ness’s employment,

however, because it is undisputed that vog affected the entire

island of Maui at the time.” Id.

The ICA held that the LIRAB’s FOF 9, finding that Van

Ness’s work or work environment posed no greater vog exposure

than that posed to the general public, was supported by

substantial evidence rebutting the presumption that Van Ness’s

injury was work-related. Id. In this regard, the ICA cited the

medical reports, finding that the “reports all concluded the Maui

vog exacerbated Van Ness’s asthma, but nothing in those reports

noted any relationship between the exacerbation and Van Ness’s

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employment.” Id. (emphases added). Dr. Tom’s recommendation

that Van Ness transfer to O#ahu rather than to another position

on Maui demonstrated that Van Ness’s “condition was not peculiar

to his employment at Lahainaluna.” Id. Additionally, the ICA

noted the vice principal’s statement that she also experienced

adverse effects of vog and that the vog was heavier in other

parts of Maui. Id. Thus, the ICA concluded that Van Ness “faced

a risk no different and no greater than that faced by any member

of the general public or in another field of work who spent time

outdoors.” Id.

The ICA further emphasized Dr. Arora’s conclusion in

his supplemental report that Van Ness’s exacerbated asthma had

“no relationship to his employment with the DOE.” Id. (brackets

and quotation marks omitted). The ICA noted that Dr. Arora

reviewed “extensive medical records,” which “indicate Van Ness

had a complex medical history and numerous health issues,” and

Dr. Arora “identified a diaphragmatic hernia as a possible cause

or contributing factor of Van Ness’s exacerbated asthma.” Id.

According to the ICA, “Dr. Arora’s reports were sufficiently

specific and credible to constitute substantial evidence, and

given the complexity of Van Ness’s medical history, it was

reasonable for the LIRAB to conclude Van Ness’s condition was

unrelated to his work.” Id. at *6.

In addition, the ICA found that “[o]ther than Van

Ness’s own testimony about his work environment and his duties,

there is no other evidence in the record suggesting that vog

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exposure was a hazard peculiar to his employment or in excess of

the hazards of employment in general.” Id.

The ICA therefore concluded that the LIRAB’s decision

was not clearly erroneous and affirmed the decision. Id.

IV. APPLICATION

A.

On April 1, 2013, Van Ness timely filed the Application

and presented the following questions for review:

A. Is the contraction of a disease compensable under HRS §
386-3 although there is no historical association of that
disease with that particular line of work?

B. Are “ordinary diseases of life” compensable under HRS §
386-3?

C. Should a test similar to the “unitary test” of Royal
State National Insurance Company v. Labor & Industrial
Relations Appeal Board, 53 Haw. 32, 487 P.2d 278 (1971),
be applied to “diseases” under HRS § 386-3?

In his Application, Van Ness argued that Flor did not

limit compensable diseases to those associated with particular

trades. Rather, under Flor, “causation could be . . . peculiar

to the particular ‘occupation, or employment’.” Thus, the ICA

erred in holding that his “claim failed because all technology

coordinator positions do not face asthma exacerbation.”

Van Ness proposed that “[a] test similar to the unitary test of

compensability for injury by ‘accidents’ should also apply to

injury by ‘disease,’ that is, the requirement of HRS § 386-3 is

simply that the disease be proximately caused by or result from

the nature of employment.” At oral argument, counsel for Van

Ness maintained that the Flor test was met, but also extended

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this argument by asking the court to reexamine or overrule the

three-part Flor test and to expressly apply the unitary test to

determine the compensability of injuries by disease under HRS §

386-3(a). MP3: Oral Argument, Hawai#i Supreme Court, at 0:03:00,

0:07:20 (Jun. 20, 213), available at

http://state.hi.us/jud/oa/13/SCOA_062013_11775.mp3.

B.

In response, the DOE maintained that Van Ness, “at

most, met one of the three criteria established by Flor” but that

Flor “requires that all three criteria must exist for an

occupational disease claim to be compensable.”

Alternatively, the DOE argued that the ICA’s ruling

should be upheld even if it misapplied the Flor test because Van

Ness’s injury also did not meet the requirements for

compensability of an injury by accident. The DOE contended that

although “both the Board and ICA decided the case based on the

merits of an occupational disease claim, both should have decided

the claim as an injury by accident claim.” The DOE emphasized

that the LIRAB’s pretrial order identifies the issue as whether

Van Ness “sustained a personal injury to his respiratory system .

. . arising out of and in the course of employment,” which

“connotes an injury by accident claim.” However, at oral

argument, counsel for the DOE stated that although the LIRAB

framed the issue as an injury by accident, it was not necessarily

the DOE’s position that the LIRAB should have decided Van Ness’s

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claim as an injury by accident rather than an injury by disease.

Oral Argument at 00:56:30-00:57:03.

V. STANDARDS OF REVIEW

A. Board decisions

Appellate review of the LIRAB's decision is governed by

HRS § 91–14(g) (1993), which provides that:

Upon review of the record the court may affirm the decision
of the agency or remand the case with instructions for
further proceedings; or it may reverse or modify the
decision and order if the substantial rights of the
petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders
are:
(1) In violation of constitutional or statutory provisions;
or(2) In excess of the statutory authority or jurisdiction
of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Clearly erroneous in view of the reliable, probative,
and substantial evidence on the whole record; or
(6) Arbitrary, or capricious, or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.

Tauese v. State of Haw., Dep’t of Labor & Indus. Relations, 113

Hawai#i 1, 25, 147 P.3d 785, 809 (2006) (quotation marks and

citations omitted).

The LIRAB’s conclusions of law are reviewed de novo,

under the right/wrong standard. Id. Its findings of fact “are

reviewable under the clearly erroneous standard to determine if

the agency decision was clearly erroneous in view of reliable,

probative, and substantial evidence on the whole record.” Id.

(quoting Poe v. Haw. Labor Relations Bd., 87 Hawai#i 191, 195,

953 P.2d 569, 573 (1998)) (quotation marks omitted).

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B. Statutory interpretation

“The interpretation of a statute is a question of law

which this court reviews de novo. When construing a statute, our

foremost obligation is to ascertain and give effect to the

intention of the legislature, which is to be obtained primarily

from the language contained in the statute itself.” Tauese, 113

Hawai#i at 26, 147 P.3d at 810 (quotation marks and citations

omitted).

VI. DISCUSSION

HRS § 386-3(a) (Supp. 2005) provides, “If an employee

suffers personal injury either by accident arising out of and in

the course of the employment or by disease proximately caused by

or resulting from the nature of the employment, the employee’s

employer or the special compensation fund shall pay compensation

to the employee or the employee’s dependents[.]”

Pursuant to HRS § 386-85 (1993), for any workers’

compensation claim, “it shall be presumed, in the absence of

substantial evidence to the contrary . . . [t]hat the claim is

for a covered work injury.” “In workmen’s compensation cases,

the employer carries a heavy burden.” Lawhead v. United Air

Lines, 59 Haw. 551, 559, 584 P.2d 119, 124 (1978). The

presumption imposed by HRS § 386-85 “is not a mere procedural

device that disappears upon the introduction of contrary

evidence.” Akamine v. Hawaiian Packing & Crating Co., 53 Haw.

406, 408, 495 P.2d 1164, 1166 (1972). Rather, “it imposes upon

the employer the burden of going forward with the evidence and

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the burden of persuasion.” Id. The presumption is rebutted

“only by substantial evidence that [the injury] is unrelated to

the employment.” Id.

“The term ‘substantial evidence’ signifies a high

quantum of evidence which, at the minimum, must be ‘relevant and

credible evidence of a quality and quantity sufficient to justify

a conclusion by a reasonable [person] that an injury or death is

not work-connected.’” Flor, 94 Hawai#i at 79, 9 P.3d at 391

(quoting Akamine, 53 Haw. at 408, 495 P.2d at 1166) (emphasis

added). “If the employer fails to adduce substantial evidence to

the contrary, the presumption mandates that the claimant must

prevail.” Akamine, 53 Haw. at 409, 495 P.2d at 1166.

The high burden placed on the employer is attributed to

the purpose of the workers’ compensation law. “[T]he legislature

has decided that work injuries are among the costs of production

which industry is required to bear[.]” Id. “Workmen’s

compensation laws were enacted as a humanitarian measure, to

create legal liability without relation to fault. They represent

a socially enforced bargain: the employee giving up his right to

recover common law damages from the employer in exchange for the

certainty of a statutory award for all work-connected injuries.”

Evanson v. Univ. of Haw., 52 Haw. 595, 598, 483 P.2d 187, 190

(1971).

Accordingly, “[t]his court has consistently construed §

386-85 liberally in accordance with the humanitarian purposes of

workmen’s compensation.” Lawhead, 59 Haw. at 559, 584 P.2d at

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124. Thus, “[i]n addition to the presumption of compensability,

the broad humanitarian purpose of the workers’ compensation

statute read as a whole requires that all reasonable doubts be

resolved in favor of the claimant[.]” Id. at 560, 584 P.2d at

125 (quotation marks and citations omitted) (emphasis added).

See Akamine, 53 Haw. at 409, 495 P.2d at 1166 (“if there is

reasonable doubt as to whether an injury is work-connected, the

humanitarian nature of the statute demands that doubt be resolved

in favor of the claimant”).

A.

In this case, Van Ness alleged that the aggravation of

his asthma resulting from his exposure to vog at Lahainaluna was

a compensable injury by disease. This court has interpreted HRS

§ 386-3 broadly to “reflect[] the policy of the Workmen’s

Compensation Law that an employee should be indemnified for all

infirmities resulting from his employment.” Royal State Nat’l

Ins. Co. v. Labor & Indus. Relations Appeal Bd., 53 Haw. 32, 37,

487 P.2d 278, 281 (1971) (emphasis added) (holding that “psychic

injuries arising out of the employment relationship” are

compensable under the statute). The parties have not contested

that the aggravation of Van Ness’s asthma would constitute a

compensable injury if it was sufficiently connected to his

employment.10

10
In the context of workers’ compensation, “[t]he term ‘disease’
[has been] construed in its broadest dictionary meaning of any ‘serious
derangement of health’ or ‘disordered state of an organism or organ.’” A.
Larson, Workers’ Compensation Law § 52.04[2] (2012) [hereinafter Larson’s].
See Black’s Law Dictionary 535 (9th ed. 2009) (defining “disease” as a
“deviation from the healthy and normal functioning of the body,” “[a]ny

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The parties dispute whether the aggravation of Van

Ness’s asthma was “proximately caused by or resulting from the

nature of the employment.” In this regard, the parties have

focused on the applicability of the three-part test for

occupational diseases established in Flor v. Holguin, 94 Hawai#i

70, 9 P.3d 382 (2000), recon. granted in part, 94 Hawai#i 92, 9

P.3d 404 (2000).

In Flor, the court held that “an employee’s injury

caused by a disease is compensable as an ‘injury by disease,’

pursuant to HRS § 386-3, when the disease (1) is caused by

conditions that are characteristic of or peculiar to the

particular trade, occupation, or employment, (2) results from the

employee’s actual exposure to such working conditions, and (3) is

due to causes in excess of the ordinary hazards of employment in

general.” 94 Hawai#i at 81, 9 P.3d at 393 (citations omitted).

Applying this test, the ICA in this case found that although it

was “undisputed that Van Ness faced actual exposure to vog in his

employment, satisfying the second condition,” “Van Ness’s

condition does not fall within the definition of a compensable

occupational disease because the DOE produced substantial

evidence that the first and third conditions of Flor were not

met.” 2012 WL 6115601, at *4. Similarly, the LIRAB rejected Van

Ness’s argument that his asthma was a compensable disease,

concluding that “[t]he nature and conditions of his employment

disorder; any depraved condition”).

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did not accentuate the exposure” to vog because “the vog was in

the air, and the general public breathed the same air.”

Inasmuch as the ICA and LIRAB considered whether vog

exposure was a natural incident of Van Ness’s occupation as a

technological coordinator, the analyses reflect a conflation of

the injury by disease prong of HRS § 386-3(a). The plain

language of HRS § 386-3(a) provides for two distinct ways in

which an “injury by disease” may be compensable under the

statute: “If an employee suffers personal injury . . . by disease

proximately caused by or resulting from the nature of the

employment, the employee’s employer . . . shall pay compensation

to the employee . . . .” (Emphasis added).

Revised Laws of Hawai#i (RLH) § 97-3 (1955), the

counterpart to HRS § 386-3, provided that “[i]f a workman

receives personal injury . . . by disease proximately caused by

the employment, or resulting from the nature of the employment,

his employer . . . shall pay compensation[.]” The history of the

statute thus demonstrates that disease proximately caused by

employment and disease resulting from the nature of employment

were intended to be distinct, although related, concepts.

A close reading of Flor indicates that the three-part

test articulated in that case is not applicable to situations in

which the disease is alleged to be “proximately caused by”11 the

11
See Black’s Law Dictionary 250 (9th ed. 2009) (defining “proximate
cause” as “[a] cause that is legally sufficient to result in liability”);
Montalvo v. Lapez, 77 Hawai#i 282, 287 n.5, 884 P.2d 345, 350 n.5 (1994) (“For
our purposes, the terms ‘legal cause’ and ‘proximate cause’ are
synonymous[.]”).

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employment, rather than alleged to “result[] from the nature of

the employment.”

In Flor, the claimant filed a workers’ compensation

claim upon being diagnosed with the hepatitis C virus after

decades of working as a dental hygienist for numerous dentists

and periodontists. Id. at 74, 9 P.3d at 386. There was

significant evidence demonstrating that the claimant “probably

had acquired hepatitis C through work exposure to contaminated

blood.” Id. However, there was “no test or procedure that could

reliably isolate either the time of first infection with

hepatitis C or the source of the infection,” and the claimant was

“unable to recall, identify, or otherwise determine the date on

which she contracted hepatitis C.” Id. Given the multiple

employers and lengthy time period involved, and the inability to

isolate the event precipitating the disease, the court stated

that it would analyze the claim as an “injury by disease,” id. at

83-85, 9 P.3d at 395-97, and defined an “injury by disease” as an

injury that “generally developed gradually over a long period of

time” as opposed to “result[ing] from a discrete event.” Id. at

78, 9 P.3d at 390.

Although the court then characterized the issue before

it as “constru[ing] the causation requirements applicable to the

‘injury-by-disease’ prong of HRS § 386-3,” id. at 80, 9 P.3d at

392, the court was clearly focused on the “resulting from the

nature of the employment” prong of injuries by disease. Thus,

the court defined an “occupational disease” as a disease

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“resulting from the nature of the employment.” Id. at 80, 9 P.3d

at 392 (citing Komatsu v. Bd. of Trustees, Employees’ Ret. Sys.,

5 Haw. App. 279, 284, 687 P.2d 1340, 1344 (1984)) (emphasis

added). The court further developed the definition of an

“occupational disease,” explaining that “‘an ailment does not

become an occupational disease simply because it is contracted on

the employer’s premises.’” Id. (quoting Anderson v. General

Motors Corp., 442 A.2d 1359, 1360 (Del. 1982)) (brackets

omitted). Rather,

[t]here must be a recognizable link between the disease and
some distinctive feature of the claimant’s job, common to
all jobs of that sort. In other words, an ailment or
disease is a compensable occupational disease if the
employer’s working conditions produced the ailment as a
natural incident of the employee’s occupation in such a
manner as to attach a hazard distinct from and greater than
the hazard attending employment in general.

94 Hawai#i at 80, 9 P.3d at 392 (emphases added) (citations and

quotation marks omitted). The Flor court then announced its

three-part test for compensating an employee’s injury caused by

disease under HRS § 386-3(a). Id. Based on the facts of that

case, the court determined that the claimant’s “disability,

caused by hepatitis C,” was compensable “inasmuch as the

Employers failed to demonstrate by substantial evidence that

Flor’s disease (1) was not caused by conditions that were

characteristic of or peculiar to her employment as a dental

hygienist, (2) did not result from her actual exposure to such

conditions, and (3) was not due to causes in excess of the

ordinary hazards of employment in general.” Id. at 84-85, 9 P.3d

at 396-97.

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The Flor court distinguished its three-part test from

the “unitary” or “nexus” test used for determining the

compensability of injuries “by accident.” Id. at 80, 9 P.3d at

392. The unitary test “considers whether there is a sufficient

work connection to bring the accident within the scope of the

statute,” and “requires the finding of a causal connection

between the injury and any incidents or conditions of

employment.” Tate v. GTE Hawaiian Tel. Co., 77 Hawai#i 100, 103,

881 P.2d 1246, 1249 (1994).

The Flor court did not examine whether the claimant’s

injury by disease was compensable under the proximate cause

analysis due to the factual nature of the case. However, the

court did not preclude circumstances in which an injury by

disease claim would be compensable under a proximate cause

analysis. On the contrary, the Flor court expressly stated that

“[w]hen a disease causing injury results from an identifiable

accident,” or from a “discrete event—the time and place of which

can be fixed,” “rather than from a peculiar risk of the

employment, it should be compensated as an accidental injury.”

Id. at 78, 9 P.3d at 390 (emphasis added). Thus, the purpose of

the Flor test was to expand coverage under HRS § 386-3 in a case

where the claimant would not have been able to show proximate

cause under the unitary test; the purpose was not to supplant the

proximate cause analysis.12

12
This is consistent with the purpose of occupational disease
legislation generally. The distinction between injuries by accident and by
disease originally developed because occupational diseases were excluded from

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Accordingly, the Flor test for compensability is

limited to determining the compensability of injuries by disease

“resulting from the nature of the employment.” For injuries by

disease “proximately caused by” the employment, we continue to

apply the unitary test.13

B.

The relevant issue under the unitary or “work-

connection approach” is simply whether there is a causal

connection between the injury and any incidents or conditions of

employment:

The work-connection approach rejects the necessity of
establishing temporal, spatial, and circumstantial proximity

coverage under early workers’ compensation laws. See Larson’s § 52.02.
Workers’ compensation statutes “were designed to substitute no-
fault coverage for common law fault remedies,” which provided coverage for
“accidental” injuries. 2 Employment Law § 7.24 Occupational disease (4th
ed.). “Because occupational diseases were not conditions subject to tort
liability, state legislatures did not address those particular problems,” and
most early court decisions did not allow coverage for non-accidental
illnesses. Id. “[T]he earliest kind of occupational disease coverage in the
United States,” beginning in the early 20th century, “took the form of general
inclusion within the term ‘injury’ or within the term ‘disease’.” Larson’s §
52.02.
However, “[w]ith the expansion of occupational disease
legislation, [the] contrast between accidental and occupational disease is
gradually losing its importance, and awards are frequently made without
specifying which category the injury falls in.” Id. at § 52.03[1].
“Jurisdictions having general coverage of occupational disease now usually
define the term to include any disease arising out of exposure to harmful
conditions of the employment, when those conditions are present in a peculiar
or increased degree by comparison with employment generally.” Id. at § 52-1.

13
This court has previously applied the unitary test in cases
involving the compensability of an injury resulting from a disease or the
aggravation of a pre-existing disease, without explicitly identifying whether
it considered the injury to be an injury by accident or by disease under the
statute. See Akamine, 53 Haw. 406, 495 P.2d 1164 (awarding compensation for
aggravation of heart condition resulting in death); Lawhead, 59 Haw. 551, 584
P.2d 119 (holding that “a disease or illness such as influenza is an injury
within the meaning of § 386-3” and awarding compensation because employee
“contracted influenza as a result of her employment”). See also Chung, 63
Haw. 642, 636 P.2d 721 (applying work-connection test to determine that
claimant’s heart attack arose out of and in the course of employment based on
evidence that claimant’s employment activities engaged claimant for long hours
and “generated a substantial amount of mental and emotional stress which is
strongly linked to the production of heart disease”).

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between the injury and employment. Instead, focusing on the
injury’s origin rather than the time and place of its
manifestation, the work-connection approach simply requires
the finding of a causal connection between the injury and
any incidents or conditions of employment.

Chung v. Animal Clinic, Inc., 63 Haw. 642, 648, 636 P.2d 721, 725

(1981) (emphasis added). “[C]ompensation is awarded if the

injury reasonably appears to have flowed from the conditions

under which the employee is required to work.” Royal State Nat’l

Ins. Co. v. Labor & Indus. Relations Appeal Bd., 53 Haw. 32, 37-

38, 487 P.2d 278, 281-82 (1971).

In Akamine, 53 Haw. at 407-08, 495 P.2d at 1165-66, the

court held that the employer and insurance carrier failed to

overcome the presumption of compensability, where an employee

died of a heart attack at work while he unloaded, stacked and

handtrucked cargo. The LIRAB had denied the workers’

compensation claim filed by the employee’s dependents, reasoning

that the employee’s death “was due to his cardiovascular disease

of long standing and that it was not attributable to his

employment[.]” Id. at 407, 495 P.2d at 1165.

In reviewing this decision, the court noted that

“[b]ecause of the relatively higher degree of uncertainty

surrounding causation of heart diseases, the strength of the

presumption is especially formidable” in “cardiac cases.” Id. at

409, 495 P.2d at 1167. The court explained that the presumption

“signals and reflects a strong legislative policy favoring awards

in arguable cases.” Id. In Akamine, there was medical testimony

by two expert witnesses. Id. at 409-10, 495 P.2d at 1167. One

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expert testified that there was no connection between the

employee’s death and his employment, based “on his belief that

heart diseases originate relatively early in one’s life and [the

employee’s] pre-existing pathological condition was the sole

cause of death.” Id. at 410-11, 495 P.2d at 1167 (footnote

omitted). The expert further testified that the employee’s job

was not “extremely exertional” and would not have precipitated a

heart attack. Id. at 411, 495 P.2d at 1168.

The court determined that it would give “little

probative weight” to such testimony. Id. at 410-11, 495 P.2d at

1167-68. The court reasoned that “while it may be sound

medically to say that the work did not ‘cause’ the attack, it may

be bad law, because, [i]n general, existing law treats the

slightest factor of aggravation as an adequate ‘cause’.” Id. at

410, 495 P.2d at 1167 (emphasis added). Thus, it was “legally

irrelevant” whether the employee’s heart attack “might have

occurred at home, on the street or elsewhere while tending to his

private affairs. The only consideration should have been whether

the attack in fact was aggravated or accelerated by his work

activity.” Id. at 413, 495 P.2d at 1169 (emphasis added).

Based on this standard, the court found that a doctor’s

testimony that he was unable to render an opinion as to whether

the heart attack was related to the employee’s work activity

“represents a salient index of the absence of substantial

evidence to the contrary.” Id. at 414, 495 P.2d at 1169

(emphasis added). The court found that the employee’s claim was

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compensable, and reversed and remanded for a determination of the

amount of the award. Id. at 414, 495 P.2d at 1170.

Following Akamine, this court has continued to hold

that “the slightest aggravation or acceleration of an injury by

the employment activity mandates compensation.” DeFries v. Ass’n

of Owners, 999 Wilder, 57 Haw. 296, 309, 555 P.2d 855, 862 (1976)

(holding that claimant was entitled to recover for injuries

resulting from stumble that aggravated or accelerated the

arthritic condition of his knee). See Chung, 63 Haw. at 651-52,

636 P.2d at 727-28 (claimant’s heart attack was aggravated or

accelerated by work activity); Flor, 94 Hawai#i at 85, 9 P.3d at

397 (applying principle that primary focus of medical testimony

is “whether employment situation in any way contributed to the

employee’s injury”); Korsak v. Haw. Permanente Med. Group, Inc.,

94 Hawai#i 257, 260, 12 P.3d 357, 360 (App. 1999) (applying

slightest aggravation test and comparing facts to Akamine, which

held that “[t]he primary focus of the medical testimony should

have been a discussion on whether the employment effort, whether

great or little, in any way aggravated [the] heart condition

which resulted in his death”) (quotation marks and citation

omitted).

In Lawhead, 59 Haw. at 558, 584 P.2d at 124, the court

held that “[i]n view of the broad scope of [HRS § 386-3], . . . a

disease or illness such as influenza is an injury within the

meaning of § 386-3.” In that case, the claimant was a flight

attendant. Id. at 553, 584 P.2d at 121. On a certain flight,

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she “worked in the galley section of the aircraft where the

temperature was extremely low.” Id. During a stopover, she

stayed in accommodations arranged by her employer, where the air

was very dry due to a “defective heating and air-conditioning

system.” Id. She woke up the next day with a “dry and sore

throat” and upon returning home she was diagnosed with influenza.

Id.

Based on these facts, the court held that the claimant

was entitled to compensation. Id. at 560, 584 P.2d at 125-26.

The court rejected the employer’s contention that the claim

should be denied because the claimant “failed to show that she

was exposed to an increased risk attributable to work.” Id. at

560, 584 P.2d at 125. The court noted that a nearly identical

argument was rejected as legally irrelevant in Akamine, and

explained, “The relevant point is not whether a claimant would

more likely have suffered an injury at work than elsewhere but

whether her injury occurring in the course of employment was work

related.” Id. In announcing its holding, the court referenced

the statutory language for injuries by disease: “[T]here was

evidence that she suffered from an illness proximately caused by

or resulting from the nature of her employment. Since United

failed to present substantial evidence to rebut the presumption

that her claim was for a covered work injury, appellee must

prevail.” Id. at 560, 584 P.2d at 125-26 (emphasis added).

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C.

In this case, the DOE failed to present substantial

evidence to overcome the statutory presumption of compensability.

As stated, “[t]he statue nowhere requires . . . some preliminary

showing . . . before the presumption will be triggered. Rather,

HRS § 386-85 clearly dictates that coverage will be presumed at

the outset, subject to being rebutted by substantial evidence to

the contrary.” Chung, 63 Haw. at 650-51, 636 P.2d at 727.

Here, the evidence was undisputed that Van Ness had a

pre-existing asthma condition. It was also undisputed that

exposure to vog aggravated Van Ness’s condition. Dr. Mathison

diagnosed Van Ness with “[m]ild persistent asthma with history of

exacerbations with exposures to volcanic smoke-ash-pollution,”

and Dr. Tom recommended that Van Ness be transferred out of Maui

because of his “asthma condition, which is exacerbated by vog.”

Dr. Arora’s supplemental report concluded that Van Ness’s medical

history is “compatible with mild exacerbation of his asthma while

in Maui because of vog conditions.”

The State’s 2008 advisory further recognized that

elevated levels of sulfur dioxide as a result of volcanic

emissions “pose an immediate health threat to people who have

asthma and other respiratory conditions.” The State’s “Health

Effects” notice confirmed that “[p]eople with asthma who are

physically active outdoors are most likely to experience the

health effects of [sulfur dioxide],” which may include “wheezing,

chest tightness, and shortness of breath.” Van Ness testified to

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experiencing such health effects when exposed to vog at work.

Thus, his asthma condition was clearly exacerbated and aggravated

by exposure to vog.

It was further undisputed that Van Ness faced actual

exposure to vog while employed at Lahainaluna. This was

recognized by both the LIRAB and the ICA. The LIRAB found that

Van Ness’s “work or work environment posed no greater vog

exposure than that posed to the general public,” (emphasis

added), implicitly finding that Van Ness was exposed to vog at

work, while the ICA expressly stated that it was “undisputed that

Van Ness faced actual exposure to vog in his employment.” 2012

WL 6115601, at *4. Additionally, there was evidence that the vog

on Maui was particularly severe around December 2005. Vice

Principal Dennis, who did not have a pre-existing asthma

condition, confirmed that she “experienced intense headaches”

during that time because of the vog.

Finally, Van Ness testified that his exposure to vog at

Lahainaluna, coupled with the requirements of his employment, the

layout of the campus, and the severity of the vog in late 2005,

caused his condition to worsen. Van Ness’s employment as a

technology coordinator at Lahainaluna was affected by the campus’

location and layout. Lahainaluna’s campus is situated on a

mountain side, with stairs providing most of the access to the

school buildings. Van Ness’s office was located at the highest

elevation point of the campus. During the seven to eight hours a

day that he was generally present on campus, Van Ness estimated

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that he spent less than five percent of his time in his office.

In order to service the computers at the lower parts of the

campus, Van Ness was required to repeatedly climb up and down the

school stairs daily. He estimated that there were 140 stairs or

about “three or four floors” down to the parking lot, and then

another “hike down” to the final section of buildings. The

stairs went “up the side of the hill” and there were also

“switchbacks.” Van Ness explained that it took “quite a bit of

effort” and about twenty minutes for him to get back to his

office from the administration building.

Van Ness testified that the exposure to vog caused many

issues with “strength” and his ability to breathe. He testified

that when the vog was severe, he experienced coughing and

wheezing, as well as a “sharp” “stabbing pain” from coughing.

This made it very difficult for him to move around the

Lahainaluna campus. His coughing worsened when he walked uphill

and climbed stairs back to his office from the lower campus, and

he would have to take breaks between stair levels because of the

coughing and wheezing that the vog caused.

Accordingly, it is clear that the “effort or strain”

Van Ness experienced with his respiratory condition as a result

of vog exposure “occur[ed] during the course of the employment

and as an ordinary or usual incident of the work,” given that his

employment required strenuous activity and the strenuous activity

caused the exacerbation of his asthma. Akamine, 53 Haw. at 413,

495 P.2d at 1169. The LIRAB’s finding that Van Ness’s “work

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environment posed no greater vog exposure than that posed to the

general public” is inapposite, inasmuch as the “relevant point is

not whether [Van Ness] would more likely have suffered an injury

at work than elsewhere[,] but whether [his] injury occurring in

the course of employment was work related.” Lawhead, 59 Haw. at

560, 584 P.2d at 125-26.

The evidence offered by the DOE to rebut the statutory

presumption was Dr. Arora’s opinion in his supplemental report

that the exacerbation of Van Ness’s asthma was “temporary and

reversible.” However, as the court held in Akamine, “existing

law treats the slightest factor of aggravation as an adequate

‘cause’” of injury. 53 Haw. at 410, 495 P.2d at 1167 (emphasis

added).

Dr. Arora also concluded that it was “impossible to

determine” if the exacerbation of Van Ness’s asthma was caused by

the vog or by the diaphragmatic hernia that developed around the

same time. While the ICA relied on this opinion to conclude that

Dr. Arora’s reports constituted substantial evidence for the

LIRAB to conclude that Van Ness’s condition was unrelated to

work, 2012 WL 6115601, at *6, the LIRAB did not rely on Dr.

Arora’s opinion in this regard. Furthermore, Dr. Arora’s opinion

that it was impossible to determine the cause of the aggravation

does not constitute substantial evidence rebutting the

presumption. On the contrary, pursuant to Akamine, doubt as to

the cause of the injury “represents a salient index of the

absence of substantial evidence” required to overcome the

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presumption that the claim is compensable. 53 Haw. at 414, 495

P.2d at 1169 (emphasis added). In any event, the presumption of

compensability and “the broad humanitarian purpose of the

workers’ compensation statute . . . requires that all reasonable

doubts be resolved in favor of the claimant.” Lawhead, 59 Haw.

at 560, 584 P.2d at 125 (quotation marks and citations omitted)

(emphasis added).

The LIRAB, however, found that the “hazard from vog

exposure [Van Ness] faced while on the campus of Lahainaluna

School was no greater hazard or risk than that faced by others

off of the campus,” and concluded that “[t]he nature and

conditions of [Van Ness’s] employment did not accentuate the

exposure. Rather, the vog was in the air, and the general public

breathed the same air.”

As discussed, the evidence overwhelmingly demonstrated

that Van Ness’s exposure to vog at work, combined with the

surrounding circumstances of his employment and his pre-existing

condition, resulted in the exacerbation of his asthma. Thus, the

aggravation of Van Ness’s asthma was causally connected to the

“incidents or conditions” of his employment. See Chung, 63 Haw.

at 648, 636 P.2d at 725 (“the work-connection approach simply

requires the finding of a causal connection between the injury

and any incidents or conditions of employment”). The LIRAB’s

finding and conclusion failed to properly consider Van Ness’s

pre-existing condition and the fact that the general public was

not exposed to the vog in the same manner as Van Ness. Therefore

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the LIRAB’s finding is clearly erroneous and the conclusion of

law is wrong.14

The DOE failed to present substantial evidence to

overcome the presumption that the aggravation of Van Ness’s

asthma was an injury “by disease proximately caused by” his

employment. See Miyamoto v. Wahiawa General Hosp., 101 Hawai#i

293, 310-11, 67 P.3d 792, 809-10 (App. 2003) (holding that LIRAB

misapplied statutory presumption that claimant’s injuries were

work-related, reversing LIRAB’s judgment and remanding for a

determination of the amount of compensation to be awarded);

Korsak v. Haw. Permanente Med. Group, Inc., 94 Hawai#i 257, 261-

62, 12 P.3d 357, 361-62 (App. 1999) (reversing LIRAB’s decision

denying benefits and remanding for determination of compensation

and apportionment, given that undisputed facts were not

sufficient “to constitute substantial evidence to rebut the

presumption” of compensability), affirmed by 94 Hawai#i 297, 309,

12 P.3d 1238, 1250 (2000) (affirming ICA’s reversal of LIRAB

decision and ICA’s remand to the LIRAB for determination of

14
It is somewhat unclear what standard the LIRAB applied in denying
Van Ness’s claim, as the LIRAB referenced language consistent with Flor as
well as language referring to the statutory standard for accidental injuries.
As stated, the LIRAB erred in applying the Flor test. The LIRAB also erred in
the way it applied the unitary work-connection test.
The LIRAB’s pretrial order characterized the claim as an injury by
accident, and the LIRAB’s decision concluded that Van Ness “did not sustain a
personal injury to his respiratory system, on December 23, 2005, arising out
of and in the course of employment.” The LIRAB’s basis for its conclusion was
simply that Van Ness “was not at work or even on Maui on December 23, 2005.”
However, as stated, the work-connection approach “rejects the necFessity of
establishing temporal, spatial, and circumstantial proximity between the
injury and employment.” Chung, 63 Haw. at 648, 636 P.2d at 725. The focus is
on the “injury’s origin rather than the time and place of its manifestation.”
Id. Accordingly, the LIRAB clearly erred in its application of the unitary
test.

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compensation and apportionment); DeFries, 57 Haw. at 309, 555

P.2d at 863 (reversing LIRAB’s judgment and remanding for

determination of amount of compensation); Akamine, 53 Haw. at

415, 495 P.2d at 1170 (same).

Accordingly, Van Ness’s claim is for a covered work

injury under HRS § 386-3.

VII.

Based on the foregoing, we vacate the ICA’s judgment

and the LIRAB’s decision and order. The case is remanded to the

LIRAB for a determination of the amount of compensation to be

awarded.15

Wayne H. Mukaida /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Steve Miyasaka
for respondent /s/ Simeon R. Acoba, Jr.

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

15
As appropriate, the LIRAB may consider the DOE’s argument
regarding the suspension of Van Ness’s right to claim workers’ compensation
benefits. See supra note 3.

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